[2017] KEHC 113 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

JUDICIAL REVIEW NO. 31 OF 2012

IN THE MATTER OF: AN ALCOHOLIC RETAIL DRINKS LICENSE

-and-

IN THE MATTER OF: AN ALCOHOLIC DRINKS CONTROL ACT 2010

-between-

REPUBLIC .......................................................................................APPLICANT

-versus-

THE CHAIRMAN

LIQUOR LICENSING BOARD MERU.................................... RESPONDENT

-and-

LUCY MUKUBA NAITO..............................................EXPARTE APPLICANT

JUDGMENT

1. The Exparte Applicant herein, LUCY MUKUBA NAITO,is a business lady who has been operating a bar at Mitunguu Market within Meru County known as Pirates Springs Club since 2008.

2. The business was last issued with a license under the Alcoholic Drinks Control Act, 2010 (hereinafter referred to as ‘the Act’) under the category of General Retail Licence No. 16106 (hereinafter referred to as ‘the License’) which was valid up to 30/06/2012. The License was issued by the Meru Liquor Licensing Board also known as the Meru District Alcoholic Drinks Regulation Committee, the Respondent herein.

3. Sometimes in July 2012 after the expiry of the License the Exparte Applicant applied for its renewal to the Respondent but the Respondent refused to accept and process the Exparte Applicant’s renewal application for reasons that the Exparte Applicant used to prepare and sell a drink known as Ndume Beer Powder, which according to the Respondent that drink was an unauthorized drink under the Act. As a result of the refusal, the Exparte Applicant’s business was rendered without a license and hence operating illegally. The position exposed the business to frequent police raids and the Exparte Applicant has since suffered loss and expenses.

4. The Exparte Applicant then instituted these proceedings and obtained leave to apply for an order of mandamus on 30/07/2012. The substantive application was filed on 13/08/2012 by way of a Notice of Motion dated 02/08/2012 which application is the one under consideration in this judgment.

5. The application prayed for the following orders: -

‘a. The honourable court be pleased to issue an order of mandamus compelling the respondent to issue the exparte applicant with a license to prepare and sell maize beverage beer known as Ndume.

b. That the costs of this application be provided for.

6. The application is supported by the Verifying Affidavit sworn by the Exparte Applicant on 23/07/2012 and the Statement of Facts. From the record, the application came up severally before Court and the Respondent was granted leave to file a response but did not. At the hearing of the application on 13/07/2017, which date was fixed by this Court on its own motion and notices duly served upon the parties, the Respondent did not appear. The hearing proceeded as scheduled.

7. The Counsel for the Exparte Applicant argued the application and asked the Court to grant the prayers sought.

8. I have carefully considered the application alongside the Verifying Affidavit and the Statement of Facts. I will first revisit the legal regime in this matter. One of the functions of the Respondent under Section 8 of the Act is to issue licenses in accordance with the Act. Section 9 of the Act provides the procedure and requirements of an application for a license. The Respondent is then to consider such application(s) and may approve, reject or return the application to the Applicant for re-submission upon compliance with the directives the Respondent gives therein. If the Respondent approves such an application it goes ahead to issue the license according to its category with or without conditions and publishes the grant in the Kenya Gazette. In the event the application is rejected, the Respondent is to indicate such in writing to the Applicant.

9. Section 14 of the Act provides for the validity and renewal of licenses as follows: -

(1) Except as otherwise provided in this Act, a District Committee may, subject to this Part, grant, renew, transfer or remove a licence, and may embody therein such condition it may deem appropriate, or it may refuse to grant, renew, transfer, withdraw or cancel a licence. A13-17 [Issue 3] No. 4 of 2010 Alcoholic Drinks Control [Rev. 2015]

(2) Every licence and every renewal, transfer, withdrawal or cancellation thereof shall be sufficiently authenticated by the District Committee.

(3) Every grant of a licence or its every renewal or transfer shall—

(a) be subject to the payment of such fee or fees as may be prescribed;

(b) expire at the end of twelve months from the date of issue;

(c) specify in the licence the hours within which the sale of alcohol is permitted.

(4) Where an application for the renewal of a licence has been made and the District Committee has not by the date of expiration of the licence reached a decision thereon, such licence shall continue in force until the decision of the District Committee is made known.

(5) Where an application for a licence has been refused, or a licence has been cancelled, no subsequent application by the former applicant or licensee for a licence of the same description shall be considered by the District Committee during the period of six months from the date of such refusal or cancellation, except at the discretion of the District Committee.

10. Pursuant to Section 15 of the Act an Applicant whose application for a new license or renewal or transfer of a license has been refused or cancelled may appeal against such refusal to the High Court within 21 days thereof.

11. In this case the Exparte Applicant contends that the Respondent declined to accept and consider her application for renewal of a license. From the reading of the application the refusal must have been verbal. Under the Act the Respondent has a statutory duty to accept and consider any application for a new license, a renewal of a license or a transfer of a license the outcome of that application notwithstanding.

12. Article 47 of the Constitution provides as follows: -

“47. (1) every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

(3)Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall-

(a) Provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal, and

(b) Promote efficient administration.”

13. Resulting from the foregone the Fair Administrative Act, 2015came into force. Under the Fair AdministrativeAct an ‘administrative action’ is defined to include: -

“i) the powers, functions and duties exercised by authorities or quasi-judicial tribunals: or

ii) any act, omission or decision of any person, body or authority that affects the legal rights or interest of any person to whom such action relates;”

14. Section 4 of the Fair AdministrativeAct provides that: -

‘1. Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.”

15. In the context of this matter, I wish to appreciate the importance of fair administrative action and to associate myself with Majanja, J. when he expressed himself in Moses Kiarie Kuria & 4 Others v. Attorney General & 3 others (2014) eKLR thus:

‘The Constitutional guarantee of the right to fair administrative action is aimed at instilling discipline to administrative action so that the values and principles of the Constitution are infused in matters of public administration.’

16. From the definition of a ‘fair administrative action’ in the Fair AdministrativeAct and the reading of Article 47 of the Constitution together with Section 4 of the Fair AdministrativeAct, the process to be undertaken in reaching an administrative decision has varied elements of procedure. They include: -

i) Whether the action was expeditious and efficient;

ii)Whether the action was lawful,

iii) Whether the action was reasonable;

iv) Whether the action was procedurally fair;

v) Whether written reasons were given; and

vi) Whether the principles of good governance, integrity and transparency were adhered to.

17. In this case the Respondent declined to even accept the application for renewal. That decision variously and adversely affected the Exparte Applicant’s rights and fundamental freedoms as guaranteed in the Constitution and as such the Exparte Applicant was entitled to reasons in writing for such refusal. The decision by the Respondent not to accept the Exparte Applicant’s application for renewal of a license was therefore contrary to the Constitution and the Fair Administrative Act, 2015.

18. By way of a remedy the Exparte Applicant now prays that this Court compels the Respondent ‘to issue the exparte applicant with a license to prepare and sell maize beverage beer known as Ndume’.Respectfully I do not think whether this Court has the jurisdiction to make such an order. I say so because if this Court is to make that order then it will have usurped the powers and duties of the Respondent. The appropriate order in the circumstances of this case is to compel the Respondent to accept and consider the application as per law provides. (See the Kisumu Court of Appeal Nos. 89 and 90 of 2011 West Kenya Sugar Company Limited & Another vs. Butali Sugar Mills Limited & Others (2014) eKLR).

19. Consequently, and in light of Article 23 of the Constitution the following orders do hereby issue: -

(a) The Exparte Applicant shall submit (and the Respondent shall receive such application on presentation), the application for renewal of the license to the Respondent herein within 15 days of this judgment.

(b) The Respondent on receipt of the application contemplated in (a) above shall hear and determine the same within a reasonable time and in accordance with the law.

(c) Costs to the Exparte Applicant.

Orders accordingly.

DELIVERED, DATEDand SIGNED at MERU this 21st day of July 2017.

A. C. MRIMA

JUDGE